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Wyoming Business Tips for April 10-April 16

April 4, 2011 — A weekly look at Wyoming business questions from the Wyoming
Small Business Development Center (WSBDC), part of WyomingEntrepreneur.Biz, a
collection of business assistance programs at the University of Wyoming.

By Cindy Unger, Wyoming Entrepreneur.Biz adviser

Social Media Meets Corporate Ethics and the Law -- Part 2

"As my company
increases our use of social media as a marketing strategy, I find myself
encouraging my employees to participate on social media sites as a work
activity. How do I determine what is ethical in terms of how employee time is
spent online and what is expressed?" John, Casper

Originally, I did quite a bit of research to concoct a set
of general social media policies that businesses could use. Due to events on Feb. 7, however, I have
discovered that my list is probably not the safest route for a business to go.

Some background: Last November, the National Labor Relations
Board (NLRB) announced plans to prosecute a complaint regarding the termination
of a union employee who posted negative remarks about her supervisor on a
personal Facebook page, using a personal computer.

The National Labor Relations Act (NLRA) protects both union
and non-union employees against discrimination based on either union-related
activity or group action, defined as "protected concerted activity." Under the
NLRA, employees have the right to engage in protected concerted activity, which
can include discussions, meetings or even a single employee discussing the
personal character of a supervisor.

The complaint alleged that the employer had overly broad and
restrictive policies regarding blogging and Internet posting by employees on
personal time. The negative comment the employee posted about her supervisor
elicited supportive responses from co-workers and resulted in further negative
comments. The company fired the employee, stating that her postings violated
the company's Internet policies.

The NLRB determined that the employer violated Section 7 of
the NLRA because the Facebook postings could be defined as "concerted
activity." Section 7 restricts employers from interfering with employees'
efforts to work together to improve the terms and conditions of their workplace
and employment.

What this all means is that I had to delete my policies in
fear that they might violate this law. In place of the policies, I have to warn
to be careful that your employment policies do not impinge on the rights of
your employees to act in concert and do not prevent employees from acting to
effect positive workplace change. The ruling does not prohibit employers from
having social media or Internet policies, but does invalidate this particular
employer's policies.

Another decision by the NLRB in December found that a similar
provision in Sears' social media policies was legal.

What businesses do need to consider in creating social media
policies is the fact that social networking is communication, and thus,
policies regarding company use of social media channels should be integrated
with a company's existing communications networks and goals, both internal and
external. Also consider what the desired relationship is going to be between
your company and these social media sites. How do you want to use social media
to promote your company? Do you want to be proactive or reactive?

Businesses can prohibit conduct that is clearly not
protected under the NLRA. An employer may restrict communications that disclose
company proprietary information, sexual references, criticism of race or
religion, obscenity, profanity or other inappropriate language and references
to illegal drugs or other illegal acts.

Employers must be careful that policies are not overly
broad, however. A good idea is to include language that expressly states that
your social media policy is not intended to restrict protected communications,
but to minimize risk to the company.

Bottom line: Have an attorney take a look at your policies
before instituting them because currently there is a fine line between the interpretation
of what is legal and what is not legal. Before taking any negative employment
action against an employee based on social media use, consult an attorney to
determine whether those actions are legally protected. State laws vary in this
area and there are also whistleblower laws that protect employees in some
situations.

Tips to make life easier: Don't delegate your company's
social media efforts to an intern or new employee who cannot possibly
accurately represent your company brand and culture. If the company has a
Twitter account, Facebook page, or is registered with other social media
outlets, the company needs to assure that the ownership of these accounts
belongs to the company, not an employee whose current job assignment includes
posting to and monitoring these accounts. Build policies around positive job
performance, not concerns about productivity that cannot be specifically
defined. And provide employee training that will encourage positive and
responsible use of social media tools.

The WSBDC is a partnership of the U.S. Small Business
Administration, the Wyoming Business Council and the University of Wyoming. To
ask a question, call 1-800-348-5194, e-mail wsbdc@uwyo.edu
or write 1000 E. University Ave., Dept. 3922, Laramie, WY, 82071-3922.